United States v. James , 556 F.3d 1062 ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-10122
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00900-MHM
DARRYL LEE JAMES, JR.,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Argued and Submitted
October 20, 2008—San Francisco, California
Filed February 26, 2009
Before: Procter Hug, Jr., Jane R. Roth,* and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Clifton
*The Honorable Jane R. Roth, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
2337
2340 UNITED STATES v. JAMES
COUNSEL
James Sun Park, Park Law Offices, PLC, Phoenix, Arizona,
for the defendant-appellant.
Diane J. Humetewa, United States Attorney District of Ari-
zona; Christina M. Cabanillas, Appellate Chief; and Vincent
Q. Kirby (argued), Assistant United States Attorney, Phoenix,
Arizona, for the plaintiff-appellee.
OPINION
CLIFTON, Circuit Judge:
Defendant Darryl Lee James, Jr., was convicted of multiple
criminal violations in a single trial. His appeal requires us to
consider two separate subjects. One involves the process for
adding new charges against a juvenile after the district court
has already approved his prosecution as an adult on charges
UNITED STATES v. JAMES 2341
previously filed against him. The other concerns the imposi-
tion of multiple convictions and sentences for single acts of
misconduct.
James was 17 years old when he committed crimes for
which he was tried and convicted as an adult. Prior to the trial,
the district court held a hearing and determined James should
be tried as an adult for the charges then outstanding against
him. Other charges related to the same series of acts were
added by the government after the juvenile transfer hearing
and determination. James challenges these added charges,
arguing that the Federal Juvenile Delinquency Act (FJDA)
required that they also be the subject of a juvenile transfer
hearing before he could be tried on them as an adult. We dis-
agree and hold that the FJDA, and specifically 18 U.S.C.
§ 5032, does not require that charges added after a juvenile
has been transferred to adult status be the subject of an addi-
tional juvenile transfer hearing.
James was convicted on separate counts of felony murder,
second degree murder, and robbery, among other offenses.
These three convictions resulted from a single homicide com-
mitted during a single robbery. In addition, James was con-
victed of three violations of 18 U.S.C. § 924(c) for using a
gun in connection with each of these three crimes. James
challenges the multiple convictions and the sentences
imposed based on those convictions on the ground that they
represent multiple punishments for the same offense in viola-
tion of the Double Jeopardy Clause. We agree, concluding
that the convictions for second degree murder, robbery, and
the two related gun violations must be vacated. In doing so,
we conclude that a conviction for violating section 924(c) is
authorized only if separate conviction and punishment for the
underlying offense is consistent with double jeopardy.
I. Background
The crimes involved in this case were committed by James
on the Navajo Indian Reservation in Arizona. His crime spree
2342 UNITED STATES v. JAMES
began when James sexually abused two young girls, ages
fourteen and three. The older girl escaped from James and ran
to her house. James went to that house and, after knocking,
fired a rifle shot through the locked front door, hitting and
injuring her grandfather. James then stole a truck and made
his way to a remote sheep camp where he encountered Juanita
Begay and her mother. He shot and killed Juanita Begay and
stole her mother’s truck, which he used to flee Arizona. He
was apprehended several days later.
The government initially charged James with first degree
murder, use of a gun in the first degree murder, two counts of
aggravated sexual abuse against a minor, and use of a gun in
each of the two counts of aggravated sexual abuse against a
minor. The government then moved to prosecute James as an
adult.
Under the FJDA, a juvenile can be tried in federal court as
an adult for specified offenses committed after the juvenile’s
fifteenth birthday if the court finds, after a hearing, that “such
transfer would be in the interest of justice.” 18 U.S.C. § 5032.
The district court in this case conducted such a juvenile trans-
fer hearing, found that transferring James to adult status was
in the interest of justice, and granted the motion. The transfer
order was affirmed by this court. United States v. Juvenile
Male, 107 Fed. Appx. 743 (9th Cir. 2004).
After James was transferred to adult status, the government
added additional charges against him: felony murder, use of
a gun in the felony murder, robbery, use of a gun in the rob-
bery, assault with a dangerous weapon, and use of a gun in the
assault. All of the gun charges were brought under 18 U.S.C.
§ 924(c), which imposes a mandatory additional sentence for
using a firearm during a crime of violence.
James moved to dismiss the indictment arguing, among
other things, that the addition of the new charges violated the
FJDA’s requirements for transfer from juvenile to adult sta-
UNITED STATES v. JAMES 2343
tus. The district court denied that motion. James sought an
immediate appeal of that interlocutory decision, but the
appeal was dismissed by this court for lack of jurisdiction.
United States v. J., 156 Fed. Appx. 18 (9th Cir. 2005).
James was tried by a jury and convicted of most, but not
all, of the charges lodged against him. Specifically, he was
convicted of felony murder, use of a gun in connection with
the felony murder, robbery, use of a gun in connection with
the robbery, two counts of aggravated sexual abuse of a
minor, and the gun charge related to one of the two counts of
sexual abuse of a minor. He was not convicted of the charged
offense of first degree murder, but he was convicted of the
lesser included offense of second degree murder, as well as
use of a gun in connection with that offense. He was acquitted
of the charge of assault with a dangerous weapon, the gun
charge related to that alleged violation, and a gun count on
one of the sexual abuse of a minor charges.
James was sentenced to life imprisonment for each of the
felony murder, second degree murder, and two sexual abuse
of a minor convictions, with the life sentences for felony mur-
der and second degree murder to run concurrently with each
other but consecutively to the life sentences for the two sexual
abuse of a minor convictions. He was sentenced to a term of
180 months for the robbery conviction, to be served concur-
rently with the two life sentences for felony and second
degree murder. He was sentenced to 300 months for using a
gun in the felony murder, 300 months for using a gun in the
second degree murder, and 300 months for using a gun in the
robbery, to be served concurrently with each other but consec-
utively to all other sentences. Lastly, he received 300 months
for using a gun in one of the sexual abuse of a minor convic-
tions to be served consecutively to all other sentences.
2344 UNITED STATES v. JAMES
II. Discussion
James raises several issues, two of which warrant discus-
sion here.1
A. The Federal Juvenile Delinquency Act
James argues that the FJDA does not allow the trial of a
juvenile as an adult on charges that have not been the subject
of a transfer hearing. We review compliance with the require-
ments of the FJDA de novo. United States v. D.L., 453 F.3d
1115, 1120 (9th Cir. 2006).
[1] Whether the FJDA requires every charge brought
against a juvenile tried as an adult to be the subject of a juve-
nile transfer hearing appears to be an issue of first impression.
We conclude that 18 U.S.C. § 5032 of the FJDA allows addi-
tional charges to be brought against a juvenile who has
already been transferred to adult status without requiring
another juvenile transfer hearing.
[2] We look first to the statutory language. Section 5032 of
the FJDA, which sets forth the procedures for transferring a
juvenile to adult status, also states:
1
James’s other challenges do not merit a lengthy discussion. First, the
district court did not plainly err by admitting James’s prior adjudications
because a finding of intent for the priors can be inferred from the record,
and the priors were alternatively admissible under Federal Rule of Evi-
dence 404(b). See United States v. Olano, 507 U.S. 725, 734 (1993).
Second, the district court’s remedial steps of requiring the government
to put all of the information it learned from Violet Tsosie on the record,
and ordering it not to use any of this information, were sufficient to protect
James’s right to counsel. See United States v. Irwin, 612 F.2d 1182, 1187
(9th Cir. 1980) (explaining that the right to counsel is only violated where
the government uses wrongfully acquired information to gain an unfair
advantage). Accordingly, the district court did not abuse its discretion by
not holding an evidentiary hearing to determine whether the right had been
violated. See, e.g., United States v. Hagege, 437 F.3d 943, 958-59 (9th Cir.
2006).
UNITED STATES v. JAMES 2345
Whenever a juvenile transferred to district court
under this section is not convicted of the crime upon
which the transfer was based or another crime which
would have warranted transfer had the juvenile been
initially charged with that crime, further proceedings
concerning the juvenile shall be conducted pursuant
to the provisions of this chapter.
18 U.S.C. § 5032 (emphasis added). This sentence describes
two groups of crimes for which a juvenile may be convicted:
“the crime upon which the transfer was based” and “another
crime which would have warranted transfer.” The first group
covers those crimes that were the subject of a transfer hearing.
The second group—those crimes that “would have warranted
transfer”—presupposes that a minor may be convicted as an
adult for an offense that had not been the subject of a transfer
hearing. If every charge required a transfer hearing and deter-
mination, there would be no need for this second group
because every crime would be one upon which “transfer was
based.”
The logic of the juvenile transfer process supports our read-
ing of the statute. To determine if a transfer to adult prosecu-
tion is in the “interest of justice,” the district court is required
to consider and make findings as to six factors:
the age and social background of the juvenile; the
nature of the alleged offense; the extent and nature
of the juvenile’s prior delinquency record; the juve-
nile’s present intellectual development and psycho-
logical maturity; the nature of past treatment efforts
and the juvenile’s response to such efforts; [and] the
availability of programs designed to treat the juve-
nile’s behavioral problems.
18 U.S.C. § 5032.
[3] Once the court has determined that a juvenile should be
tried as an adult, requiring an additional hearing to determine
2346 UNITED STATES v. JAMES
whether related charges added later meet the same standards
would serve little purpose. It does not require a hearing to
identify the newly added offenses or to ascertain the juve-
nile’s age, both currently and at the time he allegedly commit-
ted the offenses. The remaining factors that the district court
must consider primarily concern the individual characteristics
of the juvenile himself rather than the details of the offenses,
and those characteristics were already the subject of the first
hearing. If the added charges arise from the same series of
acts as the original charges, as they did here, the “interest of
justice” analysis should remain unchanged.
Indeed, if additional charges had any effect, it would seem
to be to tip the balance even further away from juvenile treat-
ment. The decision to transfer a juvenile to adult status repre-
sents a determination that “the risk of harm” posed by that
juvenile “outweighs the . . . chance for rehabilitation.” United
States v. Juvenile, 451 F.3d 571, 575 (9th Cir. 2006), over-
ruled on other grounds by United States v. Juvenile Male, 245
Fed. Appx. 597 (9th Cir. 2007). It is implausible that a juve-
nile would be less of a threat or more amenable to rehabilita-
tion because of additional charges.
In his appeal, James has challenged the process, but he has
not presented a substantive argument that the counts subse-
quently added against him should not have been included
within his adult prosecution. A new hearing on that subject by
the district court would not have led to any different result.
[4] If there are reasons why charges added later should be
dealt with separately and as part of a juvenile proceeding
rather than being included within an adult prosecution, those
reasons can be presented to the district court. The court could
decide not to permit the juvenile to be tried as an adult on any
or all of the added counts. But it would not make sense to
require another juvenile transfer hearing when it would almost
always produce an obvious result. The district court did not
err by denying the motion to dismiss the charges added
UNITED STATES v. JAMES 2347
against James on the ground that they had not been the subject
of a juvenile transfer hearing.
B. Double Jeopardy
James also challenges his convictions and sentences for fel-
ony murder, second degree murder, robbery, and the gun
counts related to those offenses, on the ground that they repre-
sent multiple punishments for the same offense. We review
the legality of James’s convictions and sentences de novo.
United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir.
2005).
The Fifth Amendment’s guarantee against double jeopardy
prohibits federal courts from imposing multiple punishments
for the same offense if not authorized by Congress to do so.
Whalen v. United States, 445 U.S. 684, 689 (1980); see also
Ball v. United States, 470 U.S. 856, 861-65 (1985) (holding
that if a jury returns a guilty verdict on multiple counts of the
same offense the judge should only enter a final judgment of
conviction on one of the offenses unless Congress clearly
authorized multiple punishments); United States v. Jose, 425
F.3d 1237, 1247 (9th Cir. 2005) (same). We have previously
stated that “a lesser included offense . . . is the ‘same’ for pur-
poses of double jeopardy as any greater offense in which it
inheres.” Jose, 425 F.3d at 1241.
James was convicted and received a life sentence for com-
mitting felony murder, specifically murder while committing
a robbery. He also was convicted and received a sentence of
180 months for robbery based on the same underlying rob-
bery, and he was convicted and received another life sentence
for second degree murder based on the same underlying mur-
der.
[5] The government has conceded that, in this case, the sec-
ond degree murder and robbery offenses are both lesser
included offenses of the felony murder conviction and does
2348 UNITED STATES v. JAMES
not argue that this is an instance where Congress has autho-
rized multiple punishments for the same offense. While we
have previously held that second degree murder is not a lesser
included offense of felony murder, that was in the context of
jury instructions. United States v. Miguel, 338 F.3d 995,
1004-06 (9th Cir. 2003); United States v. Chischilly, 30 F.3d
1144, 1159-60 (9th Cir. 1994). Here, where James has been
convicted and sentenced separately for both felony murder
and second degree murder for committing a single murder, we
agree with the government’s concession. See Whalen, 445
U.S. at 693 n.7 (explaining without disapproval that the appel-
late court vacated a sentence for second degree murder
because it believed second degree murder was a lesser
included offense of felony murder notwithstanding that the
two were separate offenses under the prevailing case law);
accord Byrd v. United States, 510 A.2d 1035, 1037 (D.C.
App. 1986) (en banc) (concluding first-degree premeditated
murder and first-degree felony murder are the same offense
under the applicable D.C. statute, thereby precluding concur-
rent sentences for the convictions). James’s convictions for
second degree murder and for robbery should be vacated
because of his conviction for the greater offense of felony
murder. Jose, 425 F.3d at 1241, 1247-48. The district court
imposed concurrent sentences for these convictions, so elimi-
nating the additional convictions will likely not have any
practical effect, but James cannot properly be convicted of
two murders when there was only one victim.
In addition, James was convicted and sentenced for multi-
ple violations of 18 U.S.C. § 924(c). The relevant portion of
that statute reads: “any person who, during and in relation to
any crime of violence . . . for which the person may be prose-
cuted in a court of the United States, uses or carries a firearm,
. . . in addition to the punishment provided for such crime of
violence” shall be punished for using or carrying a firearm. 18
U.S.C. § 924(c). James was sentenced to 300 months for
using a gun in the felony murder, 300 months for using a gun
in the second degree murder, and 300 months for using a gun
UNITED STATES v. JAMES 2349
in the robbery, those sentences to be served concurrently with
each other but consecutively to other sentences.
[6] We have never directly addressed whether section
924(c) permits multiple convictions where convictions for the
underlying offenses would not be allowed. The statutory
phrase in section 924(c) that reads, “in addition to the punish-
ment provided for such crime of violence,” presupposes that
section 924(c) will only be applied where the defendant can
be punished for the underlying offense. Accordingly, multiple
convictions for violating section 924(c) are only authorized
where separate punishments for the multiple predicate
offenses are permitted by the Double Jeopardy Clause. This
conclusion is consistent with decisions of other circuits
addressing this issue. See, e.g., United States v. Lindsay, 985
F.2d 666, 667-77 (2d Cir. 1993); United States v. Chalan, 812
F.2d 1302, 1315-17 (10th Cir. 1987). It is also consistent with
our previous decisions interpreting section 924(c). See, e.g.,
United States v. Andrews, 75 F.3d 552, 557-58 (9th Cir. 1996)
(stating that “crimes occurring as part of the same underlying
occurrence may constitute separate predicate offenses” sup-
porting separate 924(c) convictions).
[7] Since we have concluded that the second degree murder
and robbery convictions must be vacated in deference to the
felony murder conviction, so too must the section 924(c) con-
victions tied to the second degree murder and robbery counts
be vacated. We remand the second degree murder and robbery
convictions and the associated section 924(c) convictions to
the district court with instructions to vacate them without
prejudice and to stay the entry of judgment and imposition of
sentence, allowing each to be reinstated if the felony murder
conviction and the section 924(c) conviction related to felony
murder are later overturned. See United States v. Davenport,
519 F.3d 940, 948 (9th Cir. 2008).
III. Conclusion
The addition of charges after James was transferred to adult
status was without error because 18 U.S.C. § 5032 did not
2350 UNITED STATES v. JAMES
require that the additional charges be the subject of another
juvenile transfer hearing. We hold, however, that punishing
James for second degree murder, robbery, and their related
gun counts, violates double jeopardy where he was also con-
victed and sentenced for felony murder and a related gun
count for the same underlying act.
AFFIRMED IN PART; REVERSED AND
REMANDED IN PART.